AoIR2016: Laws

Cyberlaw 3.0 – Global Law of Internet Governance?
Thomas Streinz New York University School of Law, United States of America

Streinz talked about the cyberlaw debate as frequently polarised between ‘anarchists’ like Barlow and those arguing for state regulation, like Goldsmith and Wu. Streinz argues for a position somewhere in the middle (which he says is possibly where Lessig can be placed). Cyberlaw is one potential approach to this, but is often thought of with reference to treaties and custom. But this is a very slow approach to building law. Free trade agreements also increasingly touch on data flows.

The global administrative space includes a wide variety of institutions, from international organisations and treaties through to private governance institutions. Global administrative law brings many of the principles behind national governance to the international level: this is something Streinz has been trying to bring to ICANN over the last couple of years. How can ICANN become more transparent and participatory?

There’s an interesting tension emerging between multistakeholder governance and other models. Barlow’s ‘anarchist’ idea that governments should not be involved in Internet governance still lives on with many people, even if the actual system works quite differently. Global administrative law principles – transparency, participation, and review – can be applied to help build legitimacy.

The responsibilities of platforms: a new constitutionalism to promote the legitimacy of decentralized governance
Nicolas Suzor Queensland University of Technology, Australia

This presentation focuses on three key points:
1. Internet governance is decentralised.
2. We know very little about how that’s done.
3. We need better theory to understand it.

Governance, broadly defined, is “the management of the course of events in a social system” (Burris et al. 2008) – this allows us to move beyond understanding governance as only enacted by the state. Suzor refers to ‘nodal governance’ (Burris, Drahos, & Shearing) in particular, which focuses on the interrelationship of actors.

In practice, a very wide range of intermediaries govern online behaviour. Almost everything we know about the internal governance of platforms, and how they’re relating to other organisations, comes from anecdotes, leaked evidence, and lobbying documents. Platforms themselves are engaging in multiple regulatory games around the world.

There’s also increasing pressure from civil society groups for intermediaries to resist state pressure and become more independent. At the same time, many civil society groups (sometimes the same groups) are putting pressure on platforms to take more responsibility for governing the content on their sites.

The liberal division between public and private spheres makes it hard to talk about ‘rights’ in this context. So how do we apply the rule of law when governance is decentralised? There are four core values to start articulating key tensions:
1. Meaningful consent,
2. Transparency,
3. Equality and predictability,
4. Due process.

Terms of service are not good constitutional documents. They’re not designed to govern communities. Increased pressure on platforms has lead to more readable terms of service, but there’s little other improvement: no commitment to meaningful consent and transparency around terms of service changes, and all terms of service have some kind of allowance for the platform’s absolute discretion in making decisions.

There’s a range of research being undertaken by others in the research team to start understanding existing governance processes more deeply (sadly I didn’t catch all the names here). There’s still more work that needs to be done on theorising and regulating power. This is a genuinely complex issue, and there isn’t consensus around what constitutes legitimate governance. Even once ideas emerge about what constitutes legitimate governance, we have very little idea about how to get platforms to follow principles.

Free trade agreements and internet rules: new actors, new agendas
Christopher Foster (University of Sheffield, United Kingdom), Shamel Azmeh (London School of Economics, United Kingdom)

TTIP, TTP, and other less-known global trade deals are multinational, multilateral agreements, often with a regional dimension. They’re often characterised as ’21st century trade deals’, with some focus on digital data.

There’s been significant critique and protest around these trade deals from grassroots movement, often focusing on the lack of transparency involved in shaping them and the ways in which they benefit particular economic interests. There have also been critiques of their intellectual property components from a FOSS perspective, as well as of other digital issues.

However, these critiques often have quite a narrow focus: rather than focusing only on specific clauses, we need to think about them in a more holistic way. We also need to develop a less Western-centric, nationalistic perspective to evaluate them from a broader perspective that considers the global public good. Recently, a number of rounds of WTO negotiations have failed, in part because poorer nations have been pushing back against unfair proposals.

Trade deals have frequently been seen within frameworks that conceive them as negotiations between rational actors that represent the national good. But we need to understand the broader power structures, where weaker countries feel like they need to agree to unfavourable trade terms to avoid being excluded from trading blocks. Multinational companies also have an impact on the negotiations.

Foster and Azmeh’s research focuses on the TPP. This agreement focuses in part on ‘digital barriers’ to free trade. National policymakers frequently emphasise economic impact of laws managing digital content, including localised digital content (not just issues around censorship and surveillance). The US has a fear of ‘digital protectionism’, and are using the TTP as a way to push their position.

Silicon valley tech firms are also having an impact on international trade policy. Tech business alliances are also influencing policy through reports and lobbying. This is being reflected in the TPP draft.

More attention needs to be paid to the ways in which digital issues are being addressed in international trade agreements, and by the power structures that are shaping these agreements.